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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. HECTOR TORRES, Appellant.

Ordered that the judgment is affirmed.

The defendant's contention that he was deprived of a fair trial by certain remarks made by the prosecutor during summation is unpreserved for appellate review ( see CPL 470.05; People v Charles, 57 AD3d 556; People v Gill, 54 AD3d 965, 966; People v Robbins, 48 AD3d 711). In any event, most of the challenged remarks were fair comment on the evidence, permissible rhetorical comment, or responsive to the defense counsel's summation ( see People v Ashwal, 39 NY2d 105, 109-110; People v Henry, 59 AD3d 461; People v Charles, 57 AD3d 556; People v McHarris, 297 AD2d 824). "To the extent that the prosecutor may have exceeded the bounds of permissible rhetorical comment, any error was harmless" ( People v Carter, 36 AD3d 624; see People v Crimmins, 36 NY2d 230; People v Charles, 57 AD3d 556).

Furthermore, contrary to the defendant's contention, defense counsel's failure to object to certain remarks made by the prosecutor during summation did not constitute ineffective assistance of counsel ( see People v Benevento, 91 NY2d 708; People v Robbins, 48 AD3d 711; People v Gonzalez, 44 AD3d 790).

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PEOPLE v. TORRES
(Apr 6, 2010)